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Defense urges mistrial, saying state’s questions suggested witness tampering and introduced domestic‑violence evidence
Summary
At oral argument, defense counsel Edward Wicksler told a Washington appellate panel that the state’s trial questioning invited a consciousness‑of‑guilt inference and that subsequent elicitation of KR’s domestic‑violence shelter status was an "evidential harpoon" requiring a new trial; the state said any error was marginal and the record contains alternatives and stipulations. No disposition appears in the transcript.
Edward Wicksler, an attorney with the Washington Appellate Project, told the appellate panel that the trial court erred by denying Jose Nash’s motion for a mistrial after the state’s questioning suggested Nash had sent family members to the home of the prosecution’s witness, KR.
Wicksler said the state’s sudden implication of witness tampering — after earlier pretrial representations that it was not alleging tampering — invited a ‘‘consciousness‑of‑guilt’’ inference that an instruction could not cure. ‘‘These were the sorts of evidential harpoons that no instruction could cure,’’ Wicksler argued, and he said the jury’s perception of KR’s testimony was central because the critical dispute at trial was who put the gun in the car.
The defense also flagged the state’s elicitation, shortly after the contested questioning, that KR had been a victim of domestic violence living in a shelter. Wicksler said introducing the shelter testimony in that context compounded prejudice: it suggested abuse had been ‘‘credible enough and severe enough’’ to require refuge, a fact he said was not relevant to the unlawful‑possession charge and that would color jurors’ view of KR’s testimony.
Ras Barnea, the state’s attorney, responded that key aspects of the record undercut the defense claim. Barnea noted that earlier parts of the trial record contained testimony about domestic violence elicited by the defense and said that, on the whole, the contested questions were ‘‘marginal, so peripheral to the strength of the state’s case’’ and did not produce the extreme prejudice required to grant a mistrial.
A panel member questioned whether jurors could be presumed to follow the court’s instruction to disregard the shelter testimony; another asked whether alternative, nonculpable explanations for family visits (shared children, welfare checks by relatives) meant jurors might not draw a tampering inference. The panel also heard Wicksler cite Washington precedents recognizing certain evidence as uniquely prejudicial.
The transcript contains argument on the mistrial motion but does not record a decision. The court proceeded to the next case at the close of the exchange.
